The way Defendant holiday companies deal with fraud and fundamental dishonesty is now much, much clearer.
Today’s (30/10/2017) saw Judgment in the appeal in Howlett & Davies v Ageas Insurance Limited [2017] EWCA Civ 1696. It’s a case the holiday and travel industry should note with interest bordering on the feverish, given the link to “fundamental dishonesty”.
The impact on “Qualified One way Costs Shifting” (“QUOCS”) is also significant.
In essence, The Court of Appeal has ruled that a first instance Judge was completely entitled to make a finding that there had been fundamental dishonesty, despite Ageas not pleading it as such in the Defence and not raising it as a live issue in the trial.
This has been a thorny issue in many walks of legal life, but certainly those of us involved in dealing with and defending claims arising from alleged illness whilst on holiday will certainly welcome the clarity. Many a Claimant has previously argued that that Defendants wanting to benefit from the protection of fundamental dishonest must plead it. We here at Travlaw have been involved in case where our clients took on a position not-unlike Ageas in this case where we left it open to a trial Judge to make up their own mind based on all the evidence. That approach has today been vindicated.
With all due nod to Park Plane Plowden, and Tom Vonberg, who acted on behalf of Ageas along with Weightmans, here is a full copy of the Judgment. http://www.parklaneplowden.co.uk/court-of-appeal-decides-on-first-fundamental-dishonesty-costs-exception-to-qocs-in-personal-injury-litigation/n373/
As far as it goes, this is a welcome development in the fight against fake illness claims – a fight Travlaw has been in the thick of for many years. To discuss any part of this please do not hesitate to contact one of the Litigation Team.
This article was originally published on: 30 October 2017
